[Sol. Gen.] Now, my lord, I come to that which is very plain
from the case of De Libellis Famosis, in lord Coke's Reports:
if any person have slandered the government in
writing, you are to examine the truth of that fact in such
writing, but the slander which it imports to the king or
government; and be it never so true, yet if slanderous to
the king or the government, it is a libel, and to be punished:
in that case, the right or wrong is not to be examined,
or if what was done by the government be legal or
no; but whether the party have done such an act. If the
king have a power (for still I keep to that) to issue forth
proclamations to his subjects, and to make orders and constitutions
in matters ecclesiastical, if he do issue forth his
proclamation, and make an order upon the matters within
his power and prerogative; and if any one would come
and bring that power in question otherwise than in parliament,
that the matter of that proclamation be not legal, I
say that is sedition, and you are not to examine the legality
or illegality of the order or proclamation, but the slander
and reflexion upon the government, and that, I think, is
very plain upon that case, in the fifth Report De Libellis
Famosis; for it says, If a person do a thing that is libellous,
you shall not examine the fact, but the consequence of it;
whether it tended to stir up sedition against the public, or
to stir up strife between man and man, in the case of private
persons: as if a man should say of a judge, he has
taken a bribe, and I will prove it; this is not to be sent in a
letter, but they must take a regular way to prosecute it
according to law.

If it be so in the case of an inferior magistrate, what
must it be in the case of a king? To come to the king's
face, and tell him, as they do here, that he has acted illegally,
doth certainly sufficiently prove the matter to be libellous.
What do they say to the king? They say and admit,
that they have an averseness for the declaration, and they
tell him from whence that averseness doth proceed: and
yet they insinuate that they had an inclination to gratify
the king, and embrace the dissenters, that were as averse
to them as could be, with due tenderness, when it should
be settled by parliament and convocation. Pray what hath
their convocation to do in this matter?

L. C. J. Mr. Solicitor-General, I will not interrupt you;
but, pray come to the business before us. Shew us that this
is in diminution of the king's prerogative, or that the king
ever had such a prerogative.

Sol. Gen. I will, my lord, I am observing what it is they
say in this petition--They tell the king it is inconsistent
with their honour, prudence and conscience, to do what
he would have them to do: And if these things be not reflective
upon the king and government, I know not what
is. This is not in a way of judicature: possibly it might have
been allowable to petition the king to put it into a course
of justice, whereby it may be tried; but alas! there is no
such thing in this matter.

It is not their desire to put it into any method for trial,
and so it comes in the case de Libellis Famosis; for by this
way they make themselves judges, which no man by law is
permitted to do. My lords the bishops have gone out of
the way, and all that they have offered does not come
home to justify them; and therefore I take it, under favour,
that we have made it a good case for the king: We
have proved what they have done, and whether this be
warrantable or not, is the question, gentlemen, that you
are to try. The whole case appears upon record; the declaration
and petition are set forth, and the order of the
king and council. When the verdict is brought in, they may
move any thing what they please in arrest of judgment.
They have had a great deal of latitude, and taken a great
deal of liberty; but truly, I apprehend, not so very pertinently.
But I hope we have made a very good case of it
for the king, and that you, gentlemen, will give us a verdict.

Just. Holloway. Mr. Solicitor, there is one thing I would
fain be satisfied in: You say the bishops have no power to
petition the king.

Sol. Gen. Not out of parliament, Sir.

Just. Holloway. Pray give me leave, Sir: Then the king
having made such a declaration of a general toleration and
liberty of conscience, and afterwards he comes and requires
the bishops to disperse this declaration; this, they
say, out of a tenderness of conscience, they cannot do, because
they apprehend it is contrary to law, and contrary to
their function: What can they do, if they may not petition?

Sol. Gen. I'll tell you what they should have done, Sir. If
they were commanded to do any thing against their consciences,
they should have acquiesced till the meeting of
the parliament. [At which some people in the court
hissed.]

Att. Gen. This is very fine indeed! I hope the court and
the jury will take notice of this carriage.

Sol. Gen. My Lord, it is one thing for a man to submit
to his prince, if the king lay a command upon him that he
cannot obey, and another thing to affront him. If the king
will impose upon a man what he cannot do, he must acquiesce;
but shall he come and fly in the face of his prince?
Shall he say it is illegal? and the prince acts against prudence,
honour or conscience, and throw dirt in the king's
face? Sure that is not permitted; that is libelling with a
witness.

L. C. J. Truly, Mr. Solicitor, I am of opinion that the
bishops might petition the king; but this is not the right
way of bringing it in. I am not of that mind that they cannot
petition the king out of parliament; but if they may
petition, yet they ought to have done it after another manner:
for if they may in this reflective way petition the king,
I am sure it will make the government very precarious.

Just. Powell. Mr. Solicitor, it would have been too late to
stay for a parliament; for it was to have been distributed
by such a time.

Sol. Gen. They might have lain under it and submitted.

Just. Powell. No, they would have run into contempt of
the king's command, without petitioning the king not to
insist upon it; and if they had petitioned, and not have
shewn the reason why they could not obey, it would have
been looked upon as a piece of sullenness, and that they
would have been blamed for as much on the other side.

Serj. Baldock. After so long a debate, I shall not trouble
you long; most things that are to be said have been said;
but I shall only say this in short: I cannot deny, nor shall
not, but that the subject has a right to petition; but I shall
affirm it also, he has a duty to obey; and that in this case,
the power of the king to dispense with penal laws in matters
ecclesiastical, is not a thing that is now in question, nor
need we here have had these long debates on both sides.
It may be perceived plainly, by the proofs that have been
read, that the kings and princes have thought themselves
that they had such a power, though it may be the parliament
thought they had not; and therefore the declarations
of the one or the other I shall not meddle with in this case.
That power itself which the king has, as king of this realm,
in matters rather ecclesiastical and criminal, than matters
of property, may somewhat appear by what has been read
before your lordship. But all this will be nothing in our
case, neither has his majesty now depended so much upon
this thing. The declaration has been read to you, and
what's there said? The king there says, That for those reasons
he was ready to suspend those laws; and be they suspended.
Yet, my lord, with this too, that he refers it to,
and hopes to make it secure by a parliament. So that there
being this, it has not gone, I think, very far; and it not
having been touched here, it is not a point of duty in my
lords the bishops, as bishops, that's here inquired into.
Whether they should have meddled with this or no, in this
manner, is the question. That the king is supreme over all
of us, and has a particular supremacy over them, as supreme
ordinary and governor, and moderator of the
church, is very plain; and, my lord, it is as plain, that in
such things as concern the church, he has a particular
power to command them. This is not unknown, but very
frequent and common in matters ecclesiastical, and matters
of state. It is not here a question now, whether these
declarations which they were commanded to take care of
getting read, were legal or not legal? What prudence there
was, what honour there was, what conscience there was,
for their not reading it, is not the question neither: But
the point was, the king as supreme ordinary of his kingdom,
to whom the bishops are subject, does in council order;
and what is it he orders? Their sending out and distributing
his declaration. They were concerned in no more
than that, and it had been a very pretty [petty?] thing, a
small thing, to send out the king's declaration to be read
by the clergy. All the clergy were ordered to read it, but
my lords the bishops were only commanded to distribute
it. This he might do by virtue of his power ecclesiastical.
And if this be not an evil in itself, and if it be not against
the word of God, certainly obedience was due from my
lords the bishops; active obedience was due from them to
do so much as this. It was no consent of theirs, it was no
approbation of theirs of what they read, that was required.
So that if they had read it, or another had read it by the
king's order, especially if that order be legal, they are
bound to do it by virtue of their obedience, and not to
examine more.

And, my lord, in this petition, here they come to relieve,
not only themselves that were present, (for I speak to the
preamble, as others before me have spoke to the conclusion)
but they do involve the rest of the bishops that were
absent; for it is in behalf of themselves, and their brethren,
and all the clergy of that province. Now that all these
should join in the petition, is a thing very uncertain. How
does it construe here, whether they were all together and
consented to it, or how all their minds could be so fully
known, that they would be all involved in the disobedience
to this order of the king? Then, my lord, what is the thing
they are greatly averse to? There are two things required
in the order: the bishops required to distribute the declaration
to the inferior clergy, and the inferior clergy are
required to read it. Then their averseness must be to distribute
it, and the others to read it, and so they will be
involved; none of whom did ever appear to have joined in
it. And then they give reasons for their averseness; and it
is true, reasons might have been given, and good reasons
should be given, why they should not do this in duty to his
majesty; more gentle reasons, and other kind of reasons
than those that they have given.

L. C. J. Pray, brother, will you come to the matter before
us?

Serj. Baldock. I have almost done, my lord.

Just. Powell. The information is not for disobedience,
brother, but for a libel.

Serj. Baldock. No, Sir, it is not for disobedience, but it is
for giving reasons for the disobedience in a libellous petition,
and I am going on to that. The declaration is said in
the petition to be illegal; which is a charge upon the king,
that he has done an illegal act. They say, they cannot in
honour, conscience, or prudence, do it; which is a reflection
upon the prudence, justice, and honour of the king
in commanding them to do such a thing: and this appearing
to have been delivered to the king by my lords the
bishops, persons to whom certainly we all owe a deference,
as our spiritual masters, to believe what things they say as
most likely to be true; and therefore it having an universal
influence upon all the people, I shall leave it here to your
lordship and the jury, whether they ought not to answer
for it.

Recorder. I have no good one to make, my lord, I have
but a very few words to say.

L. C. J. Well, go on, Sir.

Recorder. That which I would urge, my lord, is only this:
I think, my lord, we have proved our information, and
that they have made no answer to it; for the answer they
have made is but argumentative, and taken either from
the persons of the defendants, as peers, or from the form
of its being a petition. As peers, it is said they have a right
to petition to, and advise the king; but that is no excuse at
all; for if it contains matter reproachful or scandalous, it is
a libel in them as well as in any other subject; and they
have no more right to libel the king than his majesty's
other subjects have; nor will the privilege of their peerage
exempt them from being punished. And for the form of
this paper, as being a petition, there is no more excuse in
that neither: for every man has as much right to publish a
book, or pamphlet, as they had to present their petition.
And as it would be punishable in that man to write a scandalous
book, so it would be punishable in them to make a
scandalous, and a libellous petition. And the author of Julian
the Apostate, because he was a clergyman, and a
learned man too, had as much right to publish his book,
as my lords the bishops had to deliver this libel to the king.
And if the city of London were so severely punished as to
lose their charter, for petitioning for the sitting of a parliament,
in which there were reflecting words, but more
soft--

Just. Holloway. Pray, good Mr. Recorder, don't compare
the writing of a book to the making of a petition; for it is
the birthright of the subject to petition.

Recorder. My lord, it was as lawful for the city of London
to petition for the sitting of a parliament, as it was for my
lords the bishops to give reasons for their disobedience to
the king's command: and if the matter of the city of London's
petition was reckoned to be libellous, in saying that
what the king had done in dissolving the parliament, was
an obstruction of justice, what other construction can be
made of my lords the bishops saying that the king's declaration
is illegal? And if the matter of this petition be of the
same nature with that of the city of London, your lordship
can make no other judgment of it, but that it ought to
have the same condemnation.

Just. Powell. Mr. Recorder, you will as soon bring the
two poles together, as make this petition to agree with
Johnson's book. They are no more alike than the most different
things you can name.

Serj. Trinder. My lord, I have but one word.

L. C. J. How unreasonable is this now, that we must
have so many speeches at this time of day! But we must
hear it; go on, brother.

Serj. Trinder. My lord, if your lordship pleases, that
which they seem most to insist upon on the other side, and
which has not been much spoken to on our side, is, that
this power which his majesty has exerted, in setting forth
his declaration, was illegal, and their arguments were hypothetical.
If it were illegal, they had not offended; and
they offered at some arguments to prove it illegal; but as
to that, my lord, we need not go much further than a case
which is very well known here, which I crave leave to mention,
only because the jury, perhaps, have not heard of it,
and that was the case of sir Edward Hales; where, after a
long debate, it was resolved, That the king had a power to
dispense with penal laws.

But, my lord, if I should go higher into our books of
law, that which they seem to make so strange of, might
easily be made appear to have been made a frequent and
constant practice.--

L. C. J. That is quite out of the case, brother.

Serj. Trinder. I beg your lordship's favour for a word or
two. If your lordship please to consider the power the king
has, as supreme ordinary, we say, he has a power to dispense
with these statutes as he is king, and to give ease to
his subjects, as supreme ordinary of the whole kingdom,
and as having supreme ecclesiastical authority throughout
the kingdom. There might be abundance of cases cited for
this, if there were need: the statute of primo Eliz. doubtless
is in force at this time, and a great many of the statutes
that have been made since that time, have express savings
of the king's supremacy: so that the king's power is unquestionable.
And if they have come and questioned this
power in this manner, by referring themselves to the declarations
in parliament, they have done that which of late
days has been always looked upon as an ill thing; as if the
king's authority was under the suffrages of a parliament.
But when they come to make out their parliament declarations,
there was never a one, unless it be first in Richard
the second's time, that can properly be called a parliament
declaration, so that of the several parliaments is a matter
perfectly mistaken; and if they have mistaken it, it is in the
nature of false news, which is a crime for which the law
will punish them. More things might be added, but I consider
your lordship has had a great deal of patience already,
and much time has been spent, and therefore I
shall conclude, begging your lordship's pardon for what I
have said.

L. C. J. I do assure you, if it had not been a case of great
concern, I would not have heard you so long. It is a case
of very great concern to the king and the government on
the one side, and to my lords the bishops on the other;
and I have taken all the care I can to observe what has
been said on both sides. It is not to be expected that I
should repeat all the speeches, or the particular facts, but
I will put the jury in mind of the most material things, as
well as my memory will give me leave; but I have been
interrupted by so many long and learned speeches, and by
the length of the evidence which has been brought in, in a
very broken, unmethodical way, that I shall not be able to
do so well as I would.

Gentlemen, thus stands the case: it is an information
against my lords the bishops, his grace my lord of Canterbury,
and the other six noble lords; and it is for preferring,
composing, making, and publishing, and causing to
be published, a seditious libel: the way that the information
goes is special, and it sets forth, that the king was graciously
pleased, by his royal power and prerogative, to set
forth a declaration of indulgence for liberty of conscience,
in the third year of his reign; and afterwards upon the
27th of April, in the fourth year, he comes and makes another
declaration; and afterwards in May, orders in council
that this declaration should be published by my lords
the bishops in their several dioceses; and after this was
done, my lords the bishops come and present a petition to
the king, in which were contained the words which you
have seen.

Now, gentlemen, the proofs that have been upon this,
you will see what they are. The two declarations are
proved by the clerks of the council, and they are brought
here under the great seal. A question did arise, whether
the prints were the same with the original declarations,
and that is proved by Hills, or his man, that they were
examined, and are the same. Then the order of the council
was produced by sir John Nicholas, and has likewise
been read to you. Then they come to prove the fact
against the bishops, and first they fall to proving their
hands. They begun indeed a great way off, and did not
come so close to it as they afterwards did; for some of their
hands they could hardly prove, but my lord archbishop's
hand was only proved, and some others; but there might
have been some question about that proof. But afterwards
it came to be proved, that my lords the bishops owned
their hands; which if they had produced at first, would
have made the cause something shorter than it was.

The next question that did arise, was about the publishing
of it, whether my lords the bishops had published it?
And it was insisted upon, that no body could prove the
delivery of it to the king. It was proved, the king gave it
to the council, and my lords the bishops were called in,
and there they acknowledged their hands; but nobody
could prove how it came to the king's hands. Upon which
we were all of opinion, that it was not such a publishing as
was within the information; and I was going to have directed
you to find my lords the bishops not guilty: but it
happened, that being interrupted in my directions, by an
honest, worthy, learned gentleman, the king's counsel took
the advantage, and informing the court that they had further
evidence for the king, we staid till my lord president
came, who told us how the bishops came to him to his
office at Whitehall, and after they had told him their design,
that they had a mind to petition the king, they asked
him the method they were to take for it, and desired him
to help them to the speech of the king: and he tells them
he will acquaint the king with their desire, which he does;
and the king giving leave, he comes down and tells the
bishops, that they might go and speak with the king when
they would; and, says he, I have given direction that the
door shall be opened for you as soon as you come. With
that the two bishops went away, and said, they would go
and fetch their other brethren, and they did bring the
other four, but my lord archbishop was not there; and immediately
when they came back, they went up into the
chamber, and there a petition was delivered to the king.
He cannot speak to that particular petition, because he did
not read it, and that is all that he knew of the matter; only
it was all done the same day, and that was before my lords
the bishops appeared at the council.

Gentlemen, after this was proved, then the defendants
came to their part; and these gentlemen that were of
counsel for my lords, let themselves into their defence, by
notable learned speeches, by telling you that my lords the
bishops are guardians to the church, and great peers of
the realm, and were bound in conscience to take care of
the church. They have read you a clause of a statute made
in queen Elizabeth's time, by which they say, my lords the
bishops were under a curse, if they did not take care of
that law: then they shew you some records; one in Richard
the second's time, which they could make little of, by reason
their witness could not read it; but it was, in short, a
liberty given to the king, to dispense with the statute of
provisors. Then they shew you some journals of parliament;
first in the year 1662, where the king had granted
an indulgence, and the house of commons declared it was
not fit to be done, unless it were by act of parliament: and
they read the king's speech, wherein he says, he wished he
had such a power; and so likewise that in 1672, which is
all nothing but addresses and votes, or orders of the
house, or discourses; either the king's speech, or the subjects
addresses; but these are not declarations in parliament.
That is insisted upon by the counsel for the king,
that what is a declaration in parliament is a law, and that
must be by the king, lords, and commons; the other is but
common discourse, but a vote of the house, or a signification
of their opinion, and cannot be said to be a declaration
in parliament. Then they come to that in 1685, where
the commons take notice of something about the soldiers
in the army that had not taken the test, and make an address
to the king about it: but in all these things (as far as
I can observe) nothing can be gathered out of them one
way or the other; it is nothing but discourses. Sometimes
this dispensing power has been allowed, as in Richard the
2nd's time, and sometimes it has been denied, and the
king did once wave it: Mr. Solicitor tells you the reason,
there was a lump of money in the case; but I wonder indeed
to hear it come from him.

Sol. Gen. My lord, I never gave my vote for money, I
assure you.

L. C. J. But those concessions which the king sometimes
makes for the good of the people, and sometimes for the
profit of the prince himself (but I would not be thought to
distinguish between the profit of the prince and the good
of the people, for they are both one; and what is the profit
of the prince is always for the good of the people), but I
say, those concessions must not be made law, for that is
reserved in the king's breast, to do what he pleases in it at
any time.

The truth of it is, the dispensing power is out of the
case, it is only a word used in the petition; but truly, I will
not take upon me to give my opinion in the question, to
determine that now, for it is not before me: the only question
before me is, and so it is before you, gentlemen, it
being a question of fact, whether here be a certain proof
of a publication? And then the next question is a question
of law indeed, whether if there be a publication proved, it
be a libel?

Gentlemen, upon the point of the publication, I have
summed up all the evidence to you; and if you believe that
the petition which these lords presented to the king was
this petition, truly, I think, that is a publication sufficient:
if you do not believe it was this petition, then my lords the
bishops are not guilty of what is laid to their charge in this
information, and consequently there needs no inquiry
whether they are guilty of a libel? but if you do believe
that this was the petition they presented to the king, then
we must come to inquire whether this be a libel.

Now, gentlemen, any thing that shall disturb the government,
or make mischief and a stir among the people, is
certainly within the case of "Libellis Famosis;" and I must
in short give you my opinion, I do take it to be a libel.
Now this being a point of law, if my brothers have any
thing to say to it, I suppose they will deliver their opinions.

Just. Holloway. Look you, gentlemen, it is not usual for
any person to say any thing after the Chief Justice has
summed up the evidence; it is not according to the course
of the court: but this is a case of an extraordinary nature,
and there being a point of law in it, it is very fit every body
should deliver their own opinion. The question is,
Whether this petition of my lords the bishops be a libel or
no. Gentlemen, the end and intention of every action is to
be considered; and likewise, in this case, we are to consider
the nature of the offence that these noble persons are
charged with; it is for delivering a petition, which, according
as they have made their defence, was with all the humility
and decency that could be: so that if there was no ill
intent, and they were not (as it is not, nor can be pretended
they were) men of evil lives, or the like, to deliver
a petition cannot be a fault, it being the right of every
subject to petition. If you are satisfied there was an ill intention
of sedition, or the like, you ought to find them
guilty: but if there be nothing in the case that you find,
but only that they did deliver a petition to save themselves
harmless, and to free themselves from blame, by shewing
the reason of their disobedience to the king's command,
which they apprehended to be a grievance to them, and
which they could not in conscience give obedience to, I
cannot think it is a libel: it is left to you, gentlemen, but
that is my opinion.

L. C. J. Look you, by the way, brother, I did not ask you
to sum up the evidence (for that is not usual) but only to
deliver your opinion, whether it be a libel or no.

Just. Powell. Truly I cannot see, for my part, any thing
of sedition, or any other crime, fixed upon these reverend
fathers, my lords the bishops.

For, gentlemen, to make it a libel, it must be false, it
must be malicious, and it must tend to sedition. As to the
falshood, I see nothing that is offered by the king's counsel,
nor any thing as to the malice: it was presented with
all the humility and decency that became the king's subjects
to approach their prince with.

Now, gentlemen, the matter of it is before you; you are
to consider of it, and it is worth your consideration. They
tell his majesty, it is not out of averseness to pay all due
obedience to the king, nor out of a want of tenderness to
their dissenting fellow subjects, that made them not perform
the command imposed upon them; but they say, that
because they do conceive that the thing that was commanded
them was against the law of the land, therefore
they do desire his majesty, that he would be pleased to
forbear to insist upon it, that they should perform that
command which they take to be illegal.

Gentlemen, we must consider what they say is illegal in
it. They say, they apprehend the declaration is illegal, because
it is founded upon a dispensing power, which the
king claims, to dispense with the laws concerning ecclesiastical
affairs.

Gentlemen, I do not remember, in any case in all our
law (and I have taken some pains upon this occasion to
look into it), that there is any such power in the king, and
the case must turn upon that. In short, if there be no such
dispensing power in the king, then that can be no libel
which they presented to the king, which says, that the declaration,
being founded upon such a pretended power, is
illegal.

Now, gentlemen, this is a dispensation with a witness; it
amounts to an abrogation and utter repeal of all the laws;
for I can see no difference, nor know of none in law, between
the king's power to dispense with laws ecclesiastical,
and his power to dispense with any other laws whatsoever.
If this be once allowed of, there will need no parliament;
all the legislature will be in the king, which is a thing worth
considering, and I leave the issue to God and your consciences.

Just. Allybone. The single question that falls to my share
is, to give my sense of this petition, whether it shall be in
construction of law a libel in itself, or a thing of great innocence.
I shall endeavour to express myself in as plain
terms as I can, and as much as I can, by way of proposition.

And I think, in the first place, that no man can take
upon him to write against the actual exercise of the government,
unless he have leave from the government, but
he makes a libel, be what he writes true or false; for if once
we come to impeach the government by way of argument,
it is the argument that makes it the government or not the
government. So that I lay down that, in the first place, the
government ought not to be impeached by argument, nor
the exercise of the government shaken by argument; because
I can manage a proposition in itself doubtful, with a
better pen than another man: this, say I, is a libel.

Then I lay down this for my next position, that no private
man can take upon him to write concerning the government
at all; for what has any private man to do with
the government, if his interest be not stirred or shaken? It
is the business of the government to manage matters relating
to the government; it is the business of subjects to
mind only their own properties and interests. If my interest
is not shaken, what have I to do with matters of government?
They are not within my sphere. If the government
does come to shake my particular interest, the law is
open for me, and I may redress myself by law: and when
I intrude myself into other men's business that does not
concern my particular interest, I am a libeller.

These I have laid down for plain propositions; now then
let us consider further, whether, if I will take upon me to
contradict the government, any specious pretence that I
shall put upon it shall dress it up in another form, and
give it a better denomination? And truly I think it is the
worse, because it comes in a better dress; for by that rule,
every man that can put on a good vizard, may be as mischievous
as he will to the government at the bottom: so
that whether it be in the form of a supplication, or an address,
or a petition, if it be what it ought not to be, let us
call it by its true name, and give it its right denomination--it
is a libel.

Then, gentlemen, consider what this petition is: this is a
petition relating to something that was done and ordered
by the government. Whether the reasons of the petition be
true or false, I will not examine that now, nor will I examine
the prerogative of the crown, but only take notice
that this relates to the act of the government. The government
here has published such a declaration as this that has
been read, relating to matters of government; and shall,
or ought any body to come and impeach that as illegal,
which the government has done? Truly, in my opinion, I
do not think he should, or ought; for by this rule may
every act of the government be shaken, when there is not
a parliament de facto sitting.

I do agree, that every man may petition the government,
or the king, in a matter that relates to his own private
interest, but to meddle with a matter that relates to
the government, I do not think my lords the bishops had
any power to do more than any others. When the house
of lords and commons are in being, it is a proper way of
applying to the king: there is all the openness in the world
for those that are members of parliament, to make what
addresses they please to the government, for the rectifying,
altering, regulating, and making of what law they
please; but if every private man shall come and interpose
his advice, I think there can never be an end of advising
the government. I think there was an instance of this in
king James's time, when by a solemn resolution it was declared
to be a high misdemeanor, and next to treason, the
king to put the penal laws in execution.

Just. Powell. Brother, I think you do mistake a little.

Just. Allybone. Brother I dare rely upon it that I am
right: it was so declared by all the judges.

Sol. Gen. The Puritans presented a petition to that purpose,
and in it they said, if it would not be granted, they
would come with a great number.

Just. Powell. Aye, there it is.

Just. Allybone. I tell you, Mr. Solicitor, the resolution of
the judges is, That such a petition is next door to treason,
a very great misdemeanor.

Just. Powell. They accompanying it with threats of the
people's being discontented.

Just. Allybone. As I remember, it is in the second part of
the folio 35, or 37, where the resolution of the judges is,
That to frame a petition to the king, to put the penal laws
in execution, is next to treason; for, say they, no man
ought to intermeddle with matters of government without
leave of the government.

Serj. Pemberton. That was a petition against the penal
laws.

Just. Allybone. Then I am quite mistaken indeed, in case
it be so.

Serj. Trinder. That is not material at all which it was.

Mr. Pollexfen. They there threatened, unless their request
were granted, several thousands of the king's subjects
would be discontented.

Just. Powell. That is the reason of that judgment, I affirm
it.

Just. Allybone. But then I'll tell you, brother, again, what
is said in that case that you hinted at, and put Mr. Solicitor
in mind of: for any man to raise a report that the king will
or will not permit a toleration, if either of these be disagreeable
to the people, whether he may or may not, it is
against law; for we are not to measure things from any
truth they have in themselves, but from that aspect they
have upon the government; for there may be every tittle
of a libel true, and yet it may be a libel still: so that I put
no great stress upon that objection, that the matter of it is
not false; and for sedition, it is that which every libel carries
in itself; and as every trespass implies vi & armis, so
every libel against the government carries in it sedition,
and all the other epithets that are in the information. This
is my opinion as to law in general. I will not debate the
prerogatives of the king, nor the privileges of the subject;
but as this fact is, I think these venerable bishops did meddle
with that which did not belong to them: they took
upon them, in a petitionary, to contradict the actual exercise
of the government, which I think no particular persons,
or singular body, may do.

L. C. J. Gentlemen of the jury, have you a mind to drink
before you go?

Jury. Yes, my lord, if you please. [Wine was sent for for
the jury.]

Juryman. My lord, we humbly pray that your lordship
will be pleased to let us have the papers that have been
given in evidence.

L. C. J. What is that you would have, Sir?

Sol. Gen. He desires this, my lord, that you would be
pleased to direct that the jury may have the use of such
writings and statute-books as may be necessary for them to
make use of.

L. C. J. The statute-book they shall have.

Sol. Gen. But they can have no papers but what are under
seal.

Serj. Levinz. They may have them by consent, and they
may have a copy of the information.

L. C. J. They shall have a copy of the information, and
the declarations under seal.

Mr. Pollexfen. If they have those, and the libel, as they
call it, they will not need a copy of the information.

Att. Gen. My lord, we pray that your lordship would be
pleased to ascertain what it is they shall have.

L. C. J. They shall have a copy of the information, the
libel, and the declarations under the great seal.

Sol. Gen. But not the Votes of the House of Commons,
nor the Journals, for they are not evidence.

L. C. J. No, I don't intend they shall.

Sir R. Sawyer. My lord, we pray they may have the whole
petition.

Just. Holloway. That is, with the direction and prayer,
you mean.

Att. Gen. Yes, with all our hearts.

[Then the court arose, and the jury went together, to
consider of their verdict, and stayed together all night,
without fire or candle.]

On Saturday the 30th day of June, 1688, about ten o'clock
in the morning, the archbishop, and the rest of the bishops,
came again into the court, and immediately after
the jury were brought to the bar.

Sir S. Astry. Crier, take the appearance of the jury. Sir
Roger Langley.

Sir Roger Langley. Here.

Crier. Vous avez, &c. And so all the rest were called, and
answered. Then proclamation for silence was made.

Sir S. Astry. Gentlemen, are you agreed on your verdict?
Jury. Yes.

Sir S. Astry. Who shall say for you?

Jury. Foreman.

Sir S. Astry. Do you find the defendants, or any of them,
guilty of the misdemeanor whereof they are impeached,
or not guilty?

Foreman. Not guilty.

Sir S. Astry. Then hearken to your verdict, as the court
hath recorded it.--You say, the defendants, and every of
them, are not guilty of the misdemeanor whereof they are
impeached; and so you say all?--Jury. Yes.

[At which there were several great shouts in court, and
throughout the hall.]

Mr. Solicitor General taking notice of some persons in
court that shouted, moved very earnestly that they might
be committed: whereupon a gentleman of Gray's-Inn was
laid hold of, but was soon after discharged. And after the
shouting was over, the Lord Chief Justice reproving the
gentleman, said;

L. C. J. I am as glad as you can be that my lords the
bishops are acquitted; but your manner of rejoicing here
in court is indecent, you might rejoice in your chamber, or
elsewhere, and not here. [Then speaking to Mr. Attorney,
he said:]

After the revolution, complaint was made against the
proceedings in this case, as in others.

I find in the Lords' Journal, that on May 1st, 1689, "The
earl of Huntingdon made report from the committee of
privileges, 'That the duke of Grafton, the lord Lovelace,
the archbishop of Canterbury, the bishops of St. Asaph,
Bristol, Peterborough, Ely, Bath and Wells, and Chichester,
having been desired by the lords of the committee to
cause to be brought this day before their lordships, a relation
in writing of the proceedings against their lordships,
in the court of King's Bench, in prejudice to the privileges
of the peers in general, as well as to their persons in particular;
which having not been done by any of the said
lords, that it is the opinion of the committee, that the
House be moved to take some effectual order therein.'

"Upon report from the lords committees for privileges,
it is ordered, by the lords spiritual and temporal in parliament
assembled, That Mr. Ince do attend their lordships,
with an account, in writing, of the proceedings that were
had, in the court of King's Bench, against the archbishop
of Canterbury, the bishop of Bath and Wells, the bishop
of St. Asaph, the bishop of Bristol, bishop of Ely, bishop
of Chichester, and bishop of Peterborough, in Trinity
term last."

But I have not discovered that any farther proceedings
were had on the matter.

------

All the historians of this period relate the expressions of
joy which this acquittal of the bishops called forth. Kennett
writes as follows:

"There were immediately very loud acclamations
through Westminster-hall, and the words 'Not guilty,' 'Not
guilty,' went round with such shouts and huzzas, that the
king's Solicitor moved very earnestly that such as had
shouted in the court might be committed. But the shouts
were carried on through the cities of Westminster and
London, and flew presently to Hounslow-heath, where the
soldiers in the camp echoed them so loud that it startled
the king, who was that day entertained in the earl of Feversham's
tent: insomuch that his majesty sent him out to
know what was the matter. The earl came back and told
the king, 'It was nothing but the soldiers shouting upon
the news of the bishops being acquitted.' The king replied,
'And do you call that nothing? but so much the worse for
them.' What his majesty meant by the last words he had
not much time to interpret: he could only shew some indignation,
that the bishops had escaped a legal penalty,
and he threatened to deliver them up to the ecclesiastical
commissioners. And for the two judges, Holloway and
Powell, he immediately turned them out, and would have
meditated some farther severity, if his following reign
would have allowed it.

"This acquitment of the bishops encouraged the clergy
in their honest resolutions of not reading the Declaration;
but the ecclesiastical commissioners were instructed to call
them to an account for it, for which purpose, on July 12,
they met in the council-chamber and made an order, 'That
whereas they had received information that divers rectors,
vicars and curates, had omitted or neglected to read the
said Declaration, to the manifest contempt of his majesty's
authority-royal, they do hereby command and require all
chancellors, archdeacons, commissaries and officials, to inquire
strictly within their respective jurisdictions, in what
churches and chapels his majesty's said Declaration was
read, and in what churches and chapels the same was
omitted, and to transmit an account thereof upon the 16th
of August next.' The commissioners met again on that
day, and finding that little or no inquiry had been made,
they were much divided what to do in the matter. After a
long consultation they were content to give longer time,
and therefore published another order, 'Commanding all
chancellors, archdeacons, commissaries, officials, and others
having ecclesiastical jurisdiction, strictly to inquire of
the church-wardens, as one of their articles of inquiry, at
their respective visitations, (which visitations they were required
to hold and keep before the 15th day of November
next) in what churches and chapels his majesty's said Declaration
was read, and in what the same was omitted, and
to transmit an account thereof to them on the 6th day of
December next.' But Providence prevented a return to this
inquiry. The bishop of Rochester finding by this time the
drift of the ecclesiastical commission, thought it inconsistent
with his profession and character to act any longer in
it, and therefore he wrote a letter to his colleagues, desiring
to be excused from sitting amongst them."

It appears, that the "Declaration" was not read in more
than seven churches in London, and two hundred
throughout England. See Kennett, Rapin, Burnet, and
Hume.

May 20th, 1688, being the day appointed for reading
the King's Declaration in London, it was only read in some
few places, as at Westminster-abbey," [Sprat being Dean.
See the Introduction to the Trials for the Rye-House Plot,
vol. 9, p. 362], "at Serjeants'-Inn, in Fleet-street," [a
chapel, I apprehend, belonging to the Judges and other
Serjeants at Law], "Mr. Hall's in Wood-street, Mr. Elliott's
at Duke's-place," and some few others.

"The bishops that were for reading the King's Declaration,
and dispersed it into their bishoprics, were the bishops
of Durham," [Crew: he absconded for some time, but
returned and took the oaths to King William.1
He was excepted
out of the "Bill of Indemnity and Free Pardon,"
passed in 1690, but made his peace and retained his bishopric
many years]. "Lincoln," [Barlow. He took the oaths
to King William]. "Hereford," [Croft. He wrote "The Naked
Truth." He was deprived for not taking the oaths to
King William]. "Rochester," [Sprat, who was one of King
James's privy councillors. See some account of him as
above. He took the oaths to King William]. "Chester," [Cartwright.
See some account of him, p. 27, of this Volume],
and "St. David's," [Watson. He took the oaths to King William;
but, in 1699, was deprived for simony. See his Case
in this Collection]. Narcissus Luttrell's MS. "Brief Historical
Relation," &c.

"It generally happened wherever it was read, that the
congregation immediately left the church. One minister,
before he began to read it, told his flock, 'that he could
not refuse the order sent him to read the Declaration, but
that he knew no order which obliged them to hear it.'"
Rapin.

After the acquittal of the bishops on the prosecution for
their petition, it appears that James entertained the design
of proceeding before the ecclesiastical commissioners
against them for not causing his "Declaration" to be read.
No such proceedings, however, were instituted; but the ecclesiastical
commissioners endeavoured to enforce the
reading of the Declaration by the compelled instrumentality
of the archdeacons and chancellors, of whom some undisguisedly
resisted the attempt, and some less resolutely
excused their non-compliance. Narcissus Luttrell relates,
that on October the 5th, the king declared in council that
the ecclesiastical commission was dissolved.

"The bishop of Durham, who had been at the House but twice
before, came to day to give his vote against the king, who had
raised him." Clarendon's Diary, Feb. 6, 1689.

The Founders' Constitution
Volume 5, Amendment I (Petition and Assembly), Document 6http://press-pubs.uchicago.edu/founders/documents/amendI_assemblys6.htmlThe University of Chicago Press